Full Text of HB2628 99th General Assembly
HB2628sam001 99TH GENERAL ASSEMBLY | Sen. John M. Sullivan Filed: 5/7/2015
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| 1 | | AMENDMENT TO HOUSE BILL 2628
| 2 | | AMENDMENT NO. ______. Amend House Bill 2628 by replacing | 3 | | everything after the enacting clause with the following:
| 4 | | "Section 5. The Juvenile Court Act of 1987 is amended by | 5 | | changing Sections 2-17 and 2-17.1 and by adding Sections | 6 | | 2-17.2, 2-17.3, 2-17.4, 2-17.5, and 2-17.6 as follows:
| 7 | | (705 ILCS 405/2-17) (from Ch. 37, par. 802-17)
| 8 | | Sec. 2-17. Guardian ad litem.
| 9 | | (1) Immediately upon the filing of a petition alleging that | 10 | | the minor is
a person described in Sections 2-3 or 2-4 of this | 11 | | Article, the court shall
appoint a guardian ad litem for the | 12 | | minor if:
| 13 | | (a) such petition alleges that the minor is an abused | 14 | | or neglected
child; or
| 15 | | (b) such petition alleges that charges alleging the | 16 | | commission
of any of the sex offenses defined in Article 11 |
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| 1 | | or in Sections 11-1.20, 11-1.30, 11-1.40, 11-1.50, | 2 | | 11-1.60, 12-13,
12-14,
12-14.1,
12-15 or 12-16 of the | 3 | | Criminal Code of 1961 or the Criminal Code of 2012, have | 4 | | been
filed against a defendant in any court and that such | 5 | | minor is the alleged
victim of the acts of defendant in the | 6 | | commission of such offense.
| 7 | | Unless the guardian ad litem appointed pursuant to this | 8 | | paragraph
(1) is an attorney at law he shall be represented in | 9 | | the performance
of his duties by counsel. The guardian ad litem | 10 | | shall represent the best
interests of the minor and shall | 11 | | present recommendations to the court
consistent with that duty.
| 12 | | (2) Before proceeding with the hearing, the court shall
| 13 | | appoint a guardian ad litem for the minor if
| 14 | | (a) no parent, guardian, custodian or relative of the | 15 | | minor appears
at the first or any subsequent hearing of the | 16 | | case;
| 17 | | (b) the petition prays for the appointment of a | 18 | | guardian with power
to consent to adoption; or
| 19 | | (c) the petition for which the minor is before the | 20 | | court resulted
from a report made pursuant to the Abused | 21 | | and Neglected Child Reporting
Act.
| 22 | | (3) The court may appoint a guardian ad litem for the minor | 23 | | whenever
it finds that there may be a conflict of interest | 24 | | between the minor and
his parents or other custodian or that it | 25 | | is otherwise in the minor's
best interest to do so.
| 26 | | (4) Unless the guardian ad litem is an attorney, he shall |
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| 1 | | be
represented by counsel.
| 2 | | (5) The reasonable fees of a guardian ad litem appointed | 3 | | under this
Section shall be fixed by the court and charged to | 4 | | the parents of the
minor, to the extent they are able to pay. | 5 | | If the parents are unable to
pay those fees, they shall be paid | 6 | | from the general fund of the county.
| 7 | | (6) A guardian ad litem appointed under this Section, shall | 8 | | receive
copies of any and all classified reports of child abuse | 9 | | and neglect made
under the Abused and Neglected Child Reporting | 10 | | Act in which the minor who
is the subject of a report under the | 11 | | Abused and Neglected Child Reporting
Act, is also the minor for | 12 | | whom the guardian ad litem is appointed under
this Section.
| 13 | | (7) The appointed
guardian ad
litem shall remain the | 14 | | child's guardian ad litem throughout the entire juvenile
trial | 15 | | court
proceedings, including permanency hearings and | 16 | | termination of parental rights
proceedings, unless there is a | 17 | | substitution entered by order of the court.
| 18 | | (8) The guardian
ad
litem or an agent of the guardian ad | 19 | | litem shall have a minimum of one
in-person contact with the | 20 | | minor and one contact with one
of the
current foster parents or | 21 | | caregivers prior to the
adjudicatory hearing, and at
least one | 22 | | additional in-person contact with the child and one contact | 23 | | with
one of the
current foster
parents or caregivers after the | 24 | | adjudicatory hearing but
prior to the first permanency hearing . | 25 | | The guardian ad litem or an agent of the guardian ad litem | 26 | | shall have
and one additional in-person contact with the child |
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| 1 | | and one contact with one
of the current
foster parents or | 2 | | caregivers each subsequent year , but if the child's parent or | 3 | | caregiver has been the subject of at least 3 indicated reports | 4 | | filed under the Abused and Neglected Child Reporting Act then | 5 | | the guardian ad litem or an agent of the guardian ad litem | 6 | | shall have a minimum of one additional in-person contact with | 7 | | the child and one contact with one of the current foster | 8 | | parents or caregivers once every 3 months . For good cause | 9 | | shown, the
judge may excuse face-to-face interviews required in | 10 | | this subsection.
| 11 | | (9) In counties with a population of 100,000 or more but | 12 | | less than
3,000,000, each guardian ad litem must successfully | 13 | | complete a training program
approved by the Department of | 14 | | Children and Family Services. The Department of
Children and | 15 | | Family Services shall provide training materials and documents | 16 | | to
guardians ad litem who are not mandated to attend the | 17 | | training program. The
Department of Children and Family | 18 | | Services shall develop
and
distribute to all guardians ad litem | 19 | | a bibliography containing information
including but not | 20 | | limited to the juvenile court process, termination of
parental | 21 | | rights, child development, medical aspects of child abuse, and | 22 | | the
child's need for safety and permanence.
| 23 | | (Source: P.A. 96-1551, eff. 7-1-11; 97-1150, eff. 1-25-13.)
| 24 | | (705 ILCS 405/2-17.1)
| 25 | | Sec. 2-17.1. Court appointed special advocate.
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| 1 | | (1) The court may appoint a special advocate
upon the | 2 | | filing of a petition under this Article or
at any time during | 3 | | the pendency of a proceeding under this Article.
Except in | 4 | | counties with a population over 3,000,000, the
court appointed | 5 | | special advocate may also serve as guardian ad litem by
| 6 | | appointment of the court under Section 2-17 of this Act. The | 7 | | court shall not deny a petition to appoint a special advocate | 8 | | for the sole reason that the child is not or has not been in | 9 | | foster care.
| 10 | | (2) The court appointed special advocate shall act as a | 11 | | monitor and
shall be notified of all
administrative case | 12 | | reviews pertaining to the minor and work with the
parties' | 13 | | attorneys, the guardian ad litem, and others assigned to the
| 14 | | minor's case to protect the minor's health, safety and best | 15 | | interests and
insure the proper
delivery of child welfare | 16 | | services.
The court may consider, at its discretion, testimony | 17 | | of the court
appointed special advocate pertaining to the | 18 | | well-being of the child.
| 19 | | (3) Court appointed special advocates shall serve as | 20 | | volunteers without
compensation and shall receive training | 21 | | consistent with nationally developed standards.
| 22 | | (4) No person convicted of a criminal offense as specified
| 23 | | in Section 4.2 of the Child Care Act of 1969 and no person | 24 | | identified as a
perpetrator of an act of child abuse or neglect | 25 | | as reflected in the
Department of Children and Family Services | 26 | | State Central Register shall serve
as a court appointed special |
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| 1 | | advocate.
| 2 | | (5) All costs associated with the appointment and duties of | 3 | | the court
appointed special advocate shall be paid by the court | 4 | | appointed special
advocate or an organization of court | 5 | | appointed special advocates.
In no event shall the court | 6 | | appointed special advocate be liable for any
costs of services | 7 | | provided to the child.
| 8 | | (6) The court may remove the court appointed special | 9 | | advocate or the
guardian ad litem from a case upon finding that | 10 | | the court appointed special
advocate or the guardian ad litem | 11 | | has acted in a manner contrary to the
child's best interest or | 12 | | if the court otherwise deems continued service is
unwanted or | 13 | | unnecessary.
| 14 | | (7) In any county in which a program of court appointed | 15 | | special
advocates is in operation, the provisions
of this | 16 | | Section shall apply unless the county board of that county, by
| 17 | | resolution, determines that the county shall not be governed by | 18 | | this Section.
| 19 | | (8) Any court appointed
special advocate acting in good | 20 | | faith within the scope of his or her
appointment shall have | 21 | | immunity from any civil or criminal liability that
otherwise | 22 | | might result by reason of his or her actions, except in cases | 23 | | of
willful and wanton misconduct. For the purpose of any
civil | 24 | | or criminal proceedings, the good faith of any court appointed | 25 | | special
advocate shall be presumed.
| 26 | | (Source: P.A. 90-28, eff. 1-1-98; 90-608, eff. 6-30-98; 91-357, |
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| 1 | | eff.
7-29-99 .)
| 2 | | (705 ILCS 405/2-17.2 new) | 3 | | Sec. 2-17.2. Powers and duties of guardian ad litem. | 4 | | (a) A guardian ad litem appointed to represent a child: | 5 | | (1) shall: | 6 | | (A) within a reasonable time after the | 7 | | appointment, interview: | 8 | | (i) the child in a developmentally appropriate | 9 | | manner, if the child is 4 years of age or older; | 10 | | (ii) each person who has significant knowledge | 11 | | of the child's history and condition, including | 12 | | any foster parent of the child; and | 13 | | (iii) the parties to the proceeding; | 14 | | (B) seek to elicit in a developmentally | 15 | | appropriate manner the child's expressed objectives of | 16 | | representation; | 17 | | (C) consider the impact on the child in formulating | 18 | | the presentation of the child's expressed objectives | 19 | | of representation to the court; | 20 | | (D) investigate the facts of the case to the extent | 21 | | the guardian ad litem considers appropriate; | 22 | | (E) obtain and review copies of relevant records | 23 | | relating to the child as provided by Section 2-17.6; | 24 | | (F) participate in the conduct of the proceedings | 25 | | to the same extent as an attorney for a party; |
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| 1 | | (G) take any action consistent with the child's | 2 | | interests that the guardian ad litem considers | 3 | | necessary to expedite the proceedings; | 4 | | (H) encourage settlement and the use of | 5 | | alternative forms of dispute resolution; | 6 | | (I) review and sign, or decline to sign, a proposed | 7 | | or agreed order affecting the child; | 8 | | (J) review the medical care provided to the child | 9 | | and in a developmentally appropriate manner, seek to | 10 | | elicit the child's opinion on the medical care | 11 | | provided; and | 12 | | (K) become familiar with the American Bar | 13 | | Association's standards of practice for attorneys who | 14 | | represent children in abuse and neglect cases, the | 15 | | suggested amendments to those standards adopted by the | 16 | | National Association of Counsel for Children, and the | 17 | | American Bar Association's standards of practice for | 18 | | attorneys who represent children in custody cases; | 19 | | (2) must be trained in child advocacy or have | 20 | | experience determined by the court to be equivalent to that | 21 | | training; and | 22 | | (3) is entitled to: | 23 | | (A) request clarification from the court if the | 24 | | role of the guardian ad litem is ambiguous; | 25 | | (B) request a hearing or trial on the merits; | 26 | | (C) consent or refuse to consent to an interview of |
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| 1 | | the child by another attorney; | 2 | | (D) receive a copy of each pleading or other paper | 3 | | filed with the court; | 4 | | (E) receive notice of each hearing regarding the | 5 | | child; | 6 | | (F) participate in any case staffing concerning | 7 | | the child conducted by an authorized agency; and | 8 | | (G) attend all legal proceedings regarding the | 9 | | child. | 10 | | (b) Except as otherwise provided by this Section, the | 11 | | guardian ad litem appointed for a child shall, in a | 12 | | developmentally appropriate manner: | 13 | | (1) advise the child; and | 14 | | (2) represent the child's expressed objectives of | 15 | | representation and follow the child's expressed objectives | 16 | | of representation during the course of proceedings if the | 17 | | guardian ad litem determines that the child is competent to | 18 | | understand the nature of an attorney-client relationship | 19 | | and has formed that relationship with the guardian ad | 20 | | litem. | 21 | | (c) Except as provided by subsection (e), a guardian ad | 22 | | litem appointed for a child shall: | 23 | | (1) meet before each court hearing with: | 24 | | (A) the child, if the child is at least 4 years of | 25 | | age; and | 26 | | (B) the individual or individuals with whom the |
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| 1 | | child ordinarily resides, including the child's | 2 | | parent, conservator, guardian, caretaker, or | 3 | | custodian; and | 4 | | (2) if the child or individual is not present at the | 5 | | court hearing, file a written statement with the court | 6 | | indicating that the guardian ad litem complied with | 7 | | paragraph (1) of this subsection (c). | 8 | | (d) A meeting required by subsection (c) must take place: | 9 | | (1) a sufficient time before the hearing to allow the | 10 | | guardian ad litem to prepare for the hearing in accordance | 11 | | with the child's expressed objectives of representation; | 12 | | and | 13 | | (2) in a private setting that allows for confidential | 14 | | communications between the guardian ad litem and the child | 15 | | or individual with whom the child ordinarily resides, as | 16 | | applicable. | 17 | | (e) A guardian ad litem appointed for a child is not | 18 | | required to comply with subsection (c) before a hearing if the | 19 | | court finds at that hearing that the guardian ad litem has | 20 | | shown good cause why the guardian ad litem's compliance with | 21 | | that subsection is not feasible or in the best interest of the | 22 | | child. Additionally, a court may, on a showing of good cause, | 23 | | authorize a guardian ad litem to comply with subsection (c) by | 24 | | conferring with the child or other individual, as appropriate, | 25 | | by telephone or video conference. |
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| 1 | | (705 ILCS 405/2-17.3 new) | 2 | | Sec. 2-17.3. Substituted judgment of attorney for child. | 3 | | (a) A guardian ad litem appointed to represent a child may | 4 | | determine that the child cannot meaningfully formulate the | 5 | | child's objectives of representation in a case because the | 6 | | child: | 7 | | (1) lacks sufficient maturity to understand and form an | 8 | | attorney-client relationship with the guardian ad litem; | 9 | | (2) despite appropriate legal counseling, continues to | 10 | | express objectives of representation that would be | 11 | | seriously injurious to the child; or | 12 | | (3) for any other reason is incapable of making | 13 | | reasonable judgments and engaging in meaningful | 14 | | communication. | 15 | | (b) A guardian ad litem who determines that the child | 16 | | cannot meaningfully formulate the child's expressed objectives | 17 | | of representation may present to the court a position that the | 18 | | guardian ad litem determines will serve the best interests of | 19 | | the child. | 20 | | (705 ILCS 405/2-17.4 new) | 21 | | Sec. 2-17.4. Discipline of guardian ad litem. A guardian ad | 22 | | litem who is an attorney and who fails to perform the duties | 23 | | required by Sections 2-17 and 2-17.2 is subject to disciplinary | 24 | | action in accordance with the Illinois Supreme Court Rules of | 25 | | Professional Conduct. |
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| 1 | | (705 ILCS 405/2-17.5 new) | 2 | | Sec. 2-17.5. Duties of court appointed special advocate. | 3 | | (a) Subject to any specific limitation in the order of | 4 | | appointment, a court appointed special advocate shall advocate | 5 | | the best interests of the child after reviewing the facts and | 6 | | circumstances of the case. In determining the best interests of | 7 | | the child, a court appointed special advocate shall consider | 8 | | the child's expressed objectives of representation. | 9 | | (b) A court appointed special advocate shall, in a | 10 | | developmentally appropriate manner: | 11 | | (1) with the consent of the child, ensure that the | 12 | | child's expressed objectives of representation are made | 13 | | known to the court; | 14 | | (2) explain the role of the court appointed special | 15 | | advocate to the child; and | 16 | | (3) inform the child that the court appointed special | 17 | | advocate may use information that the child provides in | 18 | | providing assistance to the court. | 19 | | (c) A court appointed special advocate shall become | 20 | | familiar with the American Bar Association's standards of | 21 | | practice for attorneys who represent children in custody cases. | 22 | | (d) A court appointed special advocate may not disclose | 23 | | confidential communications between the court appointed | 24 | | special advocate and the child unless the court appointed | 25 | | special advocate determines that disclosure is necessary to |
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| 1 | | assist the court regarding the best interests of the child. | 2 | | (705 ILCS 405/2-17.6 new) | 3 | | Sec. 2-17.6. Access to child and information relating to | 4 | | child. | 5 | | (a) In conjunction with an appointment under Section 2-17 | 6 | | or Section 2-17.1, the court shall issue an order authorizing | 7 | | the guardian ad litem or court appointed special advocate to | 8 | | have immediate access to the child and any information relating | 9 | | to the child. | 10 | | (b) Without requiring a further order or release, the | 11 | | custodian of any relevant records relating to the child, | 12 | | including records regarding social services, law enforcement | 13 | | records, school records, records of a probate or court | 14 | | proceeding, and records of a trust or account for which the | 15 | | child is a beneficiary, shall provide access to a person | 16 | | authorized to access the records under subsection (a). | 17 | | (c) Without requiring a further order or release, the | 18 | | custodian of a medical, mental health, or drug or alcohol | 19 | | treatment record of a child that is privileged or confidential | 20 | | under any other law shall release the record to a person | 21 | | authorized to access the record under subsection (a), except | 22 | | that a child's drug or alcohol treatment record that is | 23 | | confidential under 42 U.S.C. 290dd-2 may only be released as | 24 | | provided under applicable federal regulations. | 25 | | (d) The disclosure of a confidential record under this |
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| 1 | | Section does not affect the confidentiality of the record, and | 2 | | the person provided access to the record may not disclose the | 3 | | record further except as provided by court order or other law.
| 4 | | Section 10. The Illinois Marriage and Dissolution of | 5 | | Marriage Act is amended by changing Section 604 as follows:
| 6 | | (750 ILCS 5/604) (from Ch. 40, par. 604)
| 7 | | Sec. 604. Interviews.) | 8 | | (a) The court may interview the child in chambers
to | 9 | | ascertain the child's wishes as to his custodian and as to | 10 | | visitation , but if the child's parent or caregiver has been the | 11 | | subject of at least 3 indicated reports filed under the Abused | 12 | | and Neglected Child Reporting Act and the child is at least 4 | 13 | | years old then the court shall interview the child in chambers | 14 | | to ascertain the child's wishes as to his or her custodian and | 15 | | as to visitation .
Counsel shall be present at the interview | 16 | | unless otherwise agreed upon by
the parties. The court shall | 17 | | cause a court reporter to be present who shall
make a complete | 18 | | record of the interview instantaneously to be part of the
| 19 | | record in the case.
| 20 | | (b) The court may seek the advice of professional | 21 | | personnel, whether or
not employed by the court on a regular | 22 | | basis. The advice given shall be
in writing and made available | 23 | | by the court to counsel. Counsel may examine,
as a witness, any | 24 | | professional personnel consulted by the court, designated
as a |
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| 1 | | court's witness. Professional personnel consulted by the court | 2 | | are subject to subpoena for the purposes of discovery, trial, | 3 | | or both. The court shall allocate the costs and fees of those | 4 | | professional personnel between the parties based upon the | 5 | | financial ability of each party and any other criteria the | 6 | | court considers appropriate. Upon the request of any party or | 7 | | upon the court's own motion, the court may conduct a hearing as | 8 | | to the reasonableness of those fees and costs.
| 9 | | (Source: P.A. 97-47, eff. 1-1-12.)".
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